Annulment and Prohibited Marriage laws - Information on the law about Annulment and Prohibited Marriage - Prohibited Marriage

consent underage sex fraud

Many states prohibit marriage between parties more closely related than second cousins, though in some states first cousins may marry. In three states that prohibit marriages of first cousins, an exception is made for elderly parties: in Arizona and Indiana if parties are over 65 and one is sterile, or in Wisconsin if the woman is over 55 and one party is sterile. Only in Rhode Island do special exceptions exist for a particular religious group: Jews are permitted to marry according to religious law exclusive of state rules.

An issue which has lately caused a great deal of controversy is same-sex marriages. Until 1993, same-sex marriages were specifically banned in only about seven states. However, in that year the Supreme Court of Hawaii ruled that the state's prohibition of same-sex marriages was a violation of the equal protection clause of the U.S. Constitution because it discriminated on the basis of sex. The court then sent the case back to the trial court to gather additional evidence regarding the state's "compelling interest" in banning same-sex marriages. Immediately, fearful that they would be compelled under the constitutional principles of full faith and credit, to honor Hawaiian same-sex marriages, many states reacted by passing legislation specifically banning the practice. However, voters in Hawaii approved a constitutional amendment giving the legislature the authority to limit marriage to persons of the opposite sex. In 2000, the Vermont Supreme Court ruled that same-sex couples are entitled to all of the benefits of marriage.

In 2003, the Massachusetts Supreme Court declared that the state violates the constitutional rights of its citizens by prohibiting same-sex couples from getting married. The court also required the state to pass appropriate laws in response to its ruling or it would mandate official procedures and rules under which the state would allow same-sex couples to marry. The legislature has passed the laws and the first same-sex couples were married in May 2004. At the time of this writing the legislature is considering a state constitutional amendment that will declare that the citizens of Massachusetts do not recognize a constitutional right to same-sex marriage.

To date, several dozen states, including Hawaii, have passed laws prohibiting same-sex marriages. There are many states that currently have similar legislation pending. One state, Colorado, has passed a law making same-sex marriage illegal, only to have it vetoed by their governor. In general, the law in this area remains unsettled, and it is not clear whether other states will be forced to recognize a same-sex union performed in a state like Vermont.

Table 24: Annulment and Prohibited Marriage

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

ALABAMA

13A-13-1; 30-1-3; 30-1-19

Bigamy; incest; under age of 14

Children of incestuous marriage before annulment is legitimate

Bigamous; incestuous; same sex

ALASKA

25.05.01, et seq.; 25.20.050, 25.24.030

Underage; insufficient understanding for consent; consent was obtained by force or fraud; party fails to consummate; either party of unsound mind

Cannot be brought after party freely cohabits with the other after age of consent if underage or coming to reason if of unsound mind or knowledge of fraud if fraud is involved.

Children legitimate if parents subsequently marry; if acknowledged in writing by father and mother, or by adjudication of paternity by court

Either party has living spouse at time; parties related closer than fourth degree of consanguinity; same sex

Between parents and children, grandparents and grandchildren, brothers and sisters, (half and whole), aunt and nephew, uncle and niece, first cousins unless both are over 65 or one is not able to reproduce; same sex

ARKANSAS

9-11-104 through 9-11-109; 9-12-101 through 9-12-102

Incapable of consent due to age or understanding; incapable for physical causes; if consent obtained by fraud or force; underage; incest

Parents or guardians can annul marriage where consent was not provided or age misrepresented

Male must be 17 years of age, female must be 16; incestuous marriage, same sex marriages

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

CALIFORNIA

Family 2200, 2201, 2210, 2211

Party did not have capability to consent; another living spouse; unsound mind, unless party freely cohabitated with spouse after coming to reason; consent obtained by force or fraud, unless party freely cohabitated with spouse afterwards; physically incapable of entering marriage state

Age of consent: Underage party within 4 yrs. of reaching age of consent or by parent before party has reached age; Fraud: Within 4 yrs. of discovery of fraud by injured party; Husband/Wife living: Either party during life or by former spouse; Unsound mind: Any time before death; Consent by force: Within 4 yrs. of marriage by injured party; Physical incapability: Within 4 yrs. by injured party

Ancestor and descendant of any degree, brother and sister (half-blood included), uncle and niece, aunt and nephew; bigamy and polygamy

Lacking capacity due to mental infirmity, influence of alcohol, drugs, or fraud duress, jest or dare: six months after knowledge of described condition; lack of physical capacity to consummate the marriage: one year after the knowledge of condition; underage and lacked consent of parents or guardian: 24 months from date of marriage Prohibited marriages: Declaration of invalidity must be brought prior to death of either party or priority settlement or closing of estate

Children of invalid marriage are legitimate

Prior marriage still valid; between (ancestor and descendant, brother and sister, whole or half-blood uncle and niece, aunt and nephew; also whole or half blood except where permitted by aboriginal cultures) Marriage void by law of the place where marriage was contracted

Lack of capacity, fraud, duress, jest or dare: Within 90 days of obtaining knowledge; Inability to consummate: 1 yr. after knowledge obtained; Underage: Within 1 yr. of marriage; Prohibited: Anytime before death of either party or prior to settlement of estate

Children born of annulled marriage are legitimate

Between person and ancestor, descendant, brother, sister, uncle, aunt, niece, nephew, first cousin; patient in mental hospital; person of any degree of unsoundness of mind, habitual drunkard, confirmed users of narcotics, one party has communicable disease, not divorced, marriage between paupers.

DISTRICT OF COLUMBIA

46-401, 403, 405; 16-907, 908; 16-904

Marriage of an idiot or adjudged lunatic; consent by force or fraud or coercion; matrimonial incapacity; Insanity: unless voluntary cohabitation after discovery of insanity. Underage: unless voluntary cohabitation after attaining age of legal consent; bigamy

Children born in or out of wedlock are legitimate children of father and mother and their blood and adopted relatives

Marriage to one whose previous marriage has not been terminated by death or divorce (bigamy); with ancestor and descendant, uncle and niece, aunt and nephew, brother and sister and corresponding in-law relationships, marriage in foreign state to avoid law

Unable, unwilling, or fraudulently induced to contract; unsound, under 16 and no parental consent

no annulment granted where children are born or are to be born of marriage

Issue of void marriage is legitimate, if legitimate children born before annulment

Related by blood or marriage, father and daughter or stepdaughter, mother and son or stepson, brother and sister (whole- or half-blood), grandparent and grandchild, aunt and nephew, uncle and niece (penalty of prison 1-3 yrs.); same sex; bigamous

HAWAII

580-21-29; 572-1, 2

Underage, unless freely cohabitates after reaching legal age; spouse still living; lacking mental capacity; consent obtained by force, duress, fraud and no subsequent cohabitation; party afflicted with loathsome disease and was unknown to party seeking annulment

For spouse still living: Anytime during either party's lifetime; Underage: Until they attain legal age and freely cohabit as man and wife; Physical incapacity: Within 2 yrs. of marriage; Lack of mental capacity: Until mental capacity attained and parties freely cohabit as man and wife

Children of annulled or prohibited marriages are legitimate.

Between ancestor and descendant, any degree, brother and sister half or whole-blood, uncle and niece, aunt and nephew legitimate or illegitimate; bigamous; same sex. Note: Hawaii's Supreme Court has now ruled that failure of the state to issue marriage licenses to same sex partners is unconstitutional. Baehr v. Miike, 950 P.2d 1234 (Haw. 1997). This ruling has not been overturned as of June 2004, but voters have passed a constitutional amendment that makes it all but ineffective.

Underage: By parent, anytime before majority reached; By minor, within 4 yrs. of reaching age of consent Spouse living: Anytime during life; Unsound mind: Anytime before death; Fraud: Within 4 yrs. of discovery; Force: Within 4 yrs. of marriage; Incapacity to consummate: 4 yrs. from marriage

Not affected by annulment unless grounds is fraud, that woman was pregnant with another man's child, children must be begotten before annulment judgment

Incestuous; between ancestor and descendant, brother and sister (half and whole blood), uncle and niece, aunt and nephew, first cousin; polygamous marriages; same sex

90 days after knowledge of lack of capacity (either party); 1 year after knowledge of inability to consummate; any time prior to reaching age of consent; all petitions for annulment must be brought before death of either party

Children born or adopted of prohibited or annulled marriage are legitimate

Former marriage undissolved; between ancestor and descendant, brother and sister half or whole blood, uncle and niece, aunt and nephew, half or whole first cousins, (unless no chance of reproduction and both parties over 50 yrs.); common law marriages, same sex

INDIANA

31-11-8-1, et seq. 31-13-1-1, 31-13-1-2, 31-13-1-3, 31-13-2-1.

Underage or mentally incompetent to consent; obtained by fraud; unsound mind; married in another state with intent to evade marriage laws of Indiana

Children of incestuous marriage are legitimate; child conceived before marriage is annulled is legitimate

More closely related than second cousin unless first cousins married after September 1, 1977, and both 65 at marriage; bigamous marriages; common law

Underage: Must be annulled before cohabitation after eighteenth birthday; No consent; physical incapacity: Within 90 days of knowledge; Prohibited: No later than 1 yr. after discovery

Children born of unlawful or void marriages are legitimate

Any kin closer than second cousin whole or half blood; with person mentally disabled; living spouse; underage; solemnized before one without authority unless parties believed he had authority; same sex; between more than 2 persons

LOUISIANA

C.C. Art. 94-96

Null without marriage ceremony by procuration or in violation of an impediment; consent not freely given; purported marriage between same sex has no civil effects

Between ancestor and descendant, brother and sister, aunt and nephew, uncle and niece, first cousins unless cousins obtain physician's certificate of genetic counseling prior to marriage; marriage with person suffering from severe mental illness, mental retardation; marriage out of state to evade law, polygamous; same sex

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

MARYLAND

Md. Fam. §2-201, 2-202, 5-202, 2-301

Children of annulled or void marriages are legitimate.

Those within three degrees of lineal consanguinity or other degrees of affinity; same sex; individuals 16 or 17 years old, unless parental consent given or woman to be married is pregnant or has given birth; individuals 15 years old, unless parental consent given and woman to be married is pregnant or has given birth; individuals under 15 years old

MASSACHUSETTS

§207:1 to 8; 14 to 17; Ch. 207 §§1-8; 14-17

Invalid marriage

Issue of relationship in consanguinity or affinity is illegitimate; issue of marriage void for prior marriage of insanity, or nonage of parties is legitimate

Former spouse living (polygamous); marriage between ancestors or descendants, brother and sister, aunt and nephew, uncle and niece, first cousins; these provisions continue even after dissolution, by death or divorce, of marriage by which affinity was created unless divorce was given because original marriage was unlawful or void; individuals under 18, unless parental consent given

Underage: Unless they freely cohabit upon reaching majority; Incapacity: 2 years from marriage; Lunatic: Unless upon restoration of reason, they freely cohabit; Force or fraud: Unless there is voluntary cohabitation prior to commencement of suit

Issue of marriage void for nonage or bigamy or insanity are legitimate.

Bigamous; those with syphilis or gonorrhea (felony); same sex; marriage between ancestors or descendants, brother and sister (blood or affinity), aunt and nephew, uncle and niece, first cousins

Lacking capacity to consent: 90 days after obtaining knowledge of condition; Lacking physical capacity: 1 yr. after obtaining knowledge of condition; Underage: Before reaching proper age

Previously undissolved marriage; between ancestor and descendant, brother and sister, uncle and niece, aunt and nephew, first cousins all family restrictions for half or whole blood, except for those permitted by established custom of aboriginal cultures; bigamous; same sex; mentally retarded persons committed to guardianship or conservatorship of human services must have permission to marry

MISSISSIPPI

93-1-1; 93-7-1–93-7-5

Incurable impotency, insanity, or idiocy; incapable of consent from lack of understanding, force, fraud (unless ratified); pregnant by another man and husband did not know (unless ratified)

Insanity, lack of consent, pregnancy: Within 6 months of marriage

Void or annulled marriage's issue is legitimate, but issue of incestuous marriage is not

Bigamous and incestuous marriages are void (between ancestor and descendant, brother and sister, aunt and nephew, uncle and niece, first cousins by blood, daughter or son-in-law to father or mother-in-law). Marriage between persons of the same sex is prohibited and void.

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

MISSOURI

451.020, 030; 451.022

Between ancestor and descendant, brother and sister (half and whole blood), uncle and niece, aunt and nephew, first cousins (also applies to those born out of wedlock); between persons lacking capacity to enter into marriage contract; bigamous; common law marriages, same sex

Mental infirmity, alcohol, drugs: Within 1 yr. after knowledge; Force, duress, fraud: 2 yrs. after knowledge; Physical incapacity: Party must not know at time of marriage and must bring within 4 yrs.; Underage: Until age of majority; Prohibited: Anytime prior to death of parties.

Children born of invalid marriages are legitimate

Previous marriage undissolved; between ancestor and descendant, brother and sister, first cousins (half or whole blood), uncle and niece, aunt and nephew; same sex

NEBRASKA

42-103, 118, 374, 377

Underage (if they separate during such nonage and do not cohabitation after); consent obtained by force or fraud and no subsequent cohabitation; impotency at time of marriage; previous marriage undissolved; mental illness or retardation at marriage; force or fraud

Children born to annulled marriages shall be legitimate unless otherwise decreed by court

Marriage void when previous marriage undissolved; either party at marriage is mentally incompetent to enter marriage relation; between ancestor and descendant, brother and sister, first cousins (half and whole blood), uncle and niece, aunt and nephew (applies to all whether in or out of wedlock); same sex

NEVADA

125.290 to 350, 410; 122.020

Underage; lack of understanding to consent; insanity; fraud; where grounds to void the contract in equity

Underage: Within 1 yr. after 18; Fraud: May not annul if after discovery parties voluntarily cohabit; insanity: may not annul if freely cohabit after restored to sound mind

Issue of all marriages deemed null are legitimate

Previous marriage undissolved; not nearer in kin than second cousins; common law marriages

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

NEW HAMPSHIRE

457:1,2; 458:1, 23

Underage until confirming marriage upon reaching age

Issue of incestuous marriage are treated as children of unwed parents unless while married it was valid in the jurisdiction where contracted, then children are legitimate; legitimacy not affected by decree of nullity

Undissolved: Anytime during lifetime of parties; Underage: Until legal age of consent and cohabitation; Mental: Anytime during which illness continues, unless freely cohabits after restored to sound mind; Physical incapacity: Within 5 yrs. of marriage if unknown at marriage; Force, duress, fraud: Within civil statute of limitations unless voluntary cohabitation after discovery

Children of annulled or void marriages are legitimate

Between ancestor and descendant, brother and sister whole or half blood, uncle and niece, aunt and nephew, when previous marriage undissolved

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

NORTH CAROLINA

50-11.1; 51-1.2, 2, 3

Underage; previously undissolved marriage; impotent; lack of consent due to lack of will or understanding; belief that female is pregnant

Age: Marriage will not be declared void if girl is pregnant or if cohabitation after 16

Children born of voidable or bigamous marriage are legitimate

Bigamy; between double first cousins or nearer in kin than first cousin; same sex

Between persons nearer in kin than second cousins; previous marriage undissolved

OKLAHOMA

Tit. 43 §§2,3, 128, 3.1

Incapable of contracting due to lack of age or understanding; cohabitation after incapacity ceases is defense

Issue of annulled marriage are legitimate

Between ancestor and descendant, stepparent and stepchild, uncle and niece, aunt and nephew, brother and sister, first cousins (but will recognize marriage of first cousins married in state where it is legal); same sex

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

OREGON

106.020-030, 190; 107.015; 106.010

Incapable of consent for age or lack of understanding; consent obtained by force or fraud (not otherwise ratified)

Issue of prohibited marriage is legitimate

Previous marriage undissolved; between first cousins or any persons nearer in kin; whole or half blood (unless parties are first cousins by adoption only); same sex

PENNSYLVANIA

Tit. 23 §§1304, 1704, 3304-3305, 5102

Previous marriage undissolved; within consanguinity lines prohibited; lacked capacity by insanity or serious mental disorder or did not intend to consent; underage

Underage or under the influence: Within 60 days of marriage; incestuous: before death

Pennsylvania no longer recognizes status of being illegitimate (i.e., "all children legitimate irrespective of marital status of parents")

Between ancestor and descendant, aunt and nephew, brother and sister, uncle and niece, first cousins, bigamous, same sex; one party is weak-minded, unsound mind, or under influence of alcohol or drugs; induced by fraud or duress; impotence

RHODE ISLAND

15-1-1, et. seq.

No statutory provision for annulment

Bigamous; marriage where either party is mentally incompetent at time of marriage absolutely void; between ancestor and descendant, stepparent and stepchild, parent-in-law and son- or daughter-in-law; parent or parent-in-law and son- or daughter-in-law, brother and sister, uncle and niece, aunt and nephew; special exceptions for Jewish marriages allowed by Jewish religious law

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

SOUTH CAROLINA

20-1-10, 90, 530, 15, 80

Marriage invalid without consummation by cohabitation

Parties entering bigamous marriage in good faith have legitimate children

Mentally incompetent; between ancestor and descendant, spouse of ancestor or descendant, uncle and niece, aunt and nephew; bigamous marriages are void unless former spouse absent and unheard of for 5 yrs.; same sex

SOUTH DAKOTA

25-1-1, 25-3-1, et seq. 25-1-8

Underage; previous marriage undissolved; either party of unsound mind; consent by fraud or force; physical incapacity

Underage: by parent, until couple cohabits after reaching age of consent; by minor, within 4 yrs. of reaching age of majority; Previous marriage undissolved: Anytime during life of party; Unsound mind: Anytime during life of party; Force or fraud: Within 4 yrs. of discovery unless willful cohabitation; Physical incapacity: 4 yrs. after marriage

Children are legitimate when marriage is annulled for reasons of mental illness or previously undissolved marriage

Between ancestor and descendant, brother and sister (half and whole blood), uncle and niece, aunt and nephew, cousins (half and whole blood), stepparent and stepchild; same sex; bigamous, unless former spouse absent and not known to be living for 5 yrs. or believed to be dead

TENNESSEE

36-3-101 102; 36-4-125; 36-3-113

Previous marriage (unless absent for 5 yrs. and not known to be living)

Annulment shall not affect the legitimacy of children

Between ancestor and descendant, brother and sister, uncle and niece, aunt and nephew, bigamous, same sex

Underage: Suit to annul must be brought within 90 days of fourteenth birthday of the underage party or 90 days of when petitioner knew or should have known (but not after 18th birthday); Concealed divorce: before 1st anniversary of marriage

Between ancestor and descendant, brother and sister (by whole, half-blood, or adoption), aunt and nephew, uncle and niece; same sex; bigamous (but becomes valid after dissolution of 1st marriage if parties live together and present themselves as married)

UTAH

30-1-1 to 3; 17.1

When marriage prohibited and grounds existing at common law

Previous undissolved marriage: if contracted in good faith; issue of later marriages are legitimate

Between ancestor and descendant, brother and sister (half and whole blood), uncle and niece, aunt and nephew, first cousins or if both 65 or older, or 55 or older and one found by court to be unable to reproduce, or between relations within but not including fifth degree of consanguinity; previous marriage undissolved; underage; same sex

VERMONT

Tit. 15 §§511, et seq.; 15 §§1,2,3,4

Under 16; idiocy or lunacy; physically incapable of marriage state; consent had by force or fraud

Underage: Until parties obtain legal age and cohabit; Idiocy: Anytime during their life (unless restored to reason and cohabit); Physical incapacity: 2 yrs. from marriage; Consent by force or fraud: Anytime unless parties before commencement of action voluntarily cohabit

Children of annulled marriage are legitimate

Between ancestor and descendant, brother and sister, aunt and nephew, uncle and niece; prohibitions apply even after divorce has dissolved relationship unless marriage was void or unlawful; living husband or wife

Table 24: Annulment and Prohibited Marriage—Continued

State

Code Section

Grounds

Limitation

Legitimacy of Children

Prohibited Marriages

VIRGINIA

20-38.1; 20-43; 20-45.1, 2; 20-89.1; §20-31.1

Mentally incapacitated; fraud; duress; impotency; if without other's knowledge: either convicted of felony before marriage; if without other's knowledge: wife pregnant by another man, husband fathered another child born within 10 months after marriage; either had been a prostitute; no annulment allowed for fraud, duress, mental incapacity, felony, pregnancy or fathering if parties cohabited after knowledge

All actions must be brought within 2 yrs. of marriage

Children of prohibited marriages are legitimate

Previous marriage undissolved; between ancestor and descendant, brother and sister, uncle and niece, aunt and nephew (half or whole blood); same sex; bigamous; parties under 18 and have not complied with consent provisions

WASHINGTON

26.04.010, 26.04.020, 130; 26.09.040

Under 17 without waiver of superior court judge

Children born during a marriage later voided are born and remain legitimate.

Previous marriage undissolved; between persons of same sex; between persons closer in kin than second cousins (half or whole blood); voidable marriages: underage or without sufficient understanding; consent gained by fraud or duress voidable by party laboring under disability or upon whom force or fraud was imposed

WEST VIRGINIA

42-1-7; 48-1-101; 48-3-103; 48-2-302

Previous marriage undissolved; within line of prohibited consanguinity; party insane; venereal disease; impotency; underage; convicted of infamous offense prior to marriage; wife with child of another man or had been a prostitute; husband had been a licentious person 48-2-302

Children of annulled or prohibited marriage are legitimate

Between ancestor and descendant, brother and sister, half-brother and half-sister, aunt and nephew, uncle and niece, first cousins, double cousins (unless relationship created solely by adoption); Out of state marriage entered into to avoid State law

Underage: Within 1 yr. (by parent if party before age 18) of marriage; Mental infirmity, alcohol, drugs, force, duress, fraud, no capacity to consummate: Within 1 yr. of knowledge; where marriage prohibited by law, 10 yrs.; bigamy, no limit

Issue of void marriage is legitimate

Previous marriage undissolved; between person of same sex; between persons no closer in kin than second cousins (unless woman is 55 or one party is sterile and they are first cousins)

Underage: Until couple cohabits upon reaching age of consent; Physical incapacity: Until 2 yrs. after marriage

Legitimacy not affected by dissolution

Previous marriage undissolved; party mentally incompetent; between ancestor and descendant, brother and sister, uncle and niece, aunt and nephew, first cousins (does not apply to relations by affinity)

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User Comments

A while back I wrote to you regarding my marriage to my Aunt. We have been illegally married for four years now and recently she has decided that she no longer wished to be married to me because of the blood relationship. She has moved from our home here in Nevada and moved in with her rotten children in Denver Co.

I have made numerous attempts to recogncile but to no avail. She refuses to answer any phone calls or respond to any contact efforts on my part. I had sent her the filled out forms for a joint petition divorce however she refuses to have anything to do with me.

I need to correct this matter as soon as possible and get this divorce processed. Could you please inform me as to what steps I will need to take, the cost. Please keep in mind that according to Nevada the Marriage is illegal anyway. We simply didn't know. Who can do this for me and how long will it take. Can I do this without her involved since she refuses to respond.